Citation NR: 9600519
Decision Date: 01/18/96 Archive Date: 02/06/96
DOCKET NO. 92-04 273 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
ATTORNEY FOR THE BOARD
James Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty with a recognized guerrilla
service from May 1945 to August 1945, and with the regular
Philippine Army from August 1945 to February 1946. The
appellant is the veteranís widow.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a January 1992 decision of the
Department of Veterans Affairs (VA) Manila, Philippines,
Regional Office (RO), which denied service connection for the
cause of the veteranís death. The appellant appealed that
decision to the Board, whereupon it was referred for review.
In December 1992, the Board remanded the case back to the RO
for further evidentiary development. That development having
been accomplished, the case has been forwarded to the Board
for further review.
The Board notes that the veteranís claims file has been
identified as having possibly been tampered with by a former
Board employee. The appellant was notified of this
possibility in March 1995, and offered an opportunity to
review the claims file and submit additional evidence. As of
this date the appellant has not responded to that
notification. Therefore, the Board will proceed with the
review of her claim.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO was incorrect in denying
the benefit sought on appeal. She asserts that the veteranís
death was the result of a cerebral vascular accident, caused
by hypertension which first manifested during his service.
She further asserts that the veteran had smallpox, typhoid
fever, tetanus, and cholera during and after service, and
that these conditions contributed to the cause of the
veteranís death. Therefore, a favorable determination is
requested and warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the appellant's claim for service
connection for the cause of the veteranís death is not well
grounded.
FINDINGS OF FACT
1. The veteran died in January 1989, at the age of 64, as a
result of a cerebral vascular accident.
2. At the time of the veteranís death, service connection
was not in effect for any disorder.
3. The claim for service connection for the cause of the
veteranís death is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The appellantís claim for service connection for the cause of
the veteran's death is not well grounded. 38 U.S.C.A. ß
5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The preliminary question before the Board is whether the
veteran has submitted a well-grounded claim as required by 38
U.S.C.A. ß 5107(a). The United States Court of Veteranís
Appeals has held that a well-grounded claim is one that is
plausible, capable of substantiation or meritorious on its
own. 38 U.S.C.A. ß 5107(a); Murphy v. Derwinski, 1 Vet.App.
78, 81 (1990). While the claim need not be conclusive, it
must be accompanied by supporting evidence; a mere allegation
is not sufficient. Tirpak v. Derwinski, 2 Vet. App. 609
(1992). In cases which the determinative issue is one
involving medical causation, competent medical evidence is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet.App. 91, 93 (1993).
The law provides that a claimant of dependency and indemnity
compensation benefits is entitled to service connection for
cause of death if a disability of service origin caused,
hastened or substantially and materially contributed to the
death. 38 U.S.C.A. ß 1310(b) (West 1991); 38 C.F.R. ß 3.312
(1994). Certain illnesses, such as cardiovascular disease
and cholera, may be presumed as service-connected if
manifested within one year of the veteranís separation from
service. 38 C.F.R. ßß 3.307, 3.309 (1994). Accordingly, to
satisfy her burden, the appellant must prove through
competent medical evidence that a disease or injury was
directly or presumptively incurred in service, and that a
nexus exists between the inservice disease and the veteranís
cause of death.
The veteranís death certificate reveals that he died on
January [redacted], 1989 as the result of a cerebral vascular
accident. Apparently, no autopsy was performed. The
appellant contends that the veteranís death was caused by
hypertension that began during service. She also asserts
that the veteran had smallpox, typhoid fever, tetanus, and
cholera in service and that those diseases continued after
his separation, eventually contributing to his death.
The evidence of record does not show that any disease or
injury was directly or presumptively incurred in service.
The claims file contains no service medical records showing
hypertension, other cardiovascular disease, or any of the
other diseases asserted by the appellant. The appellant has
provided the joint affidavit of Mr. [redacted] [redacted] and
Mr. [redacted], dated in June 1991, as evidence of the
veteranís non-cardiovascular diseases. Both gentlemen
apparently served alongside the veteran in World War II.
They aver that the veteran had the claimed diseases while in
service, and that the ailments contributed to the veteranís
eventual death. Lay persons, such as the appellant and the
affiants, however, although competent to provide an account
of symptoms, are not qualified to offer evidence that
requires medical knowledge such as a diagnosis or opinion as
to the cause of a disability. See Espiritu v. Derwinski,
2 Vet.App. 492, 494 (1992). Without medical evidence of the
disordersí etiologies, the Board cannot conclude that the
veteran had any of them in service. See Rabideau v.
Derwinski, 2 Vet.App. 141, 144 (1992).
Even assuming, however, that the evidence demonstrates that
the veteran had a service-related disease, the appellant has
not proffered a medical opinion showing a nexus between that
supposed disease and the cause of the veteranís death. The
claims file contains two statements, dated in May 1991 and
February 1993, from Nestor C. Pascual, M.D. Dr. Pascual
stated that he treated the veteran for hypertension from 1987
to 1988. Apparently, the veteran had a transient ischemic
attack in 1987, preceded by ďseveral yearsĒ of hypertension.
The doctor did not provide a specific date for the onset of
hypertension or an opinion linking the veteranís death to a
service-related condition. Dr. Pascual also did not identify
any other disorders that the veteran had either during
service or at the time of death. As such, there is simply no
evidence, beyond lay assertions, that the veteranís death was
caused by a service-related disorder.
The Board is empathetic to the appellantís loss, but it is
bound by the factual evidence contained within the claims
file. The appellantís speculative assertion that the veteran
died from service-related disabilities does not constitute
competent evidence upon which to reach a determination in
this matter. Therefore, it is the judgment of the Board that
the appellant has failed to meet her initial burden of
submitting evidence of a well-grounded claim for entitlement
to service connection for cause of death. Thus a weighing of
its merits is not warranted, and the reasonable doubt
doctrine need not be applied. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990). Accordingly, the appellantís claim must be
dismissed.
The Board would also point out that although the Board
considered and denied this appeal on different grounds from
those of the RO, which denied the claim on the merits, the
appellant is not prejudiced by this decision. This is
because in assuming that the claim is well grounded, the RO
accorded her greater consideration than the claims in fact
warranted under the circumstances. See Bernard v. Brown, 4
Vet.App. 384, 392-94 (1993). To remand this case to the RO
for consideration of the issue of whether the appellantís
claim is well grounded would be pointless and, in light of
the law cited above, would not result in a determination
favorable to her. See VA O.G.C. Prec. 16-92, 57 Fed.Reg. 49,
747 (1992).
Finally, the Board views its discussion as sufficient to
inform the appellant of the elements necessary to complete
her application for a claim for service connection for the
cause of the veteranís death. Robinettte v. Brown, 8
Vet.App. 69, 77-78 (1995). In this regard, the above
discussion informs the appellant of the steps she needs to
fulfill in order to present a well grounded claim, and an
explanation why her current claim is inadequate.
ORDER
The appeal on the issue of entitlement to service connection
for the cause of the veteranís death is dismissed as not well
grounded.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, ß 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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